“Ex post facto”Illegal search and seizure is technically ex post facto. However, general guidelines of what constitutes an illegal search CAN be established. Furthermore, it makes sense that these guidelines CAN and SHOULD deter, just as murder laws CAN and SHOULD deter (as he admitted in CX).

“Law enforcement doesn't care about the Constitution”His argument is like saying, “my little brother doesn't care about rules, ergo we shouldn't try to deter him from stealing cookies from the cookie jar.” BECAUSE law enforcement care about themselves more than the Constitution, we must PUNISH them for violating the Constitution. If they care about themselves, they don't want to be fined or imprisoned, and thus they will be less likely to perform illegal searches.

“What the Supreme Court says”My interpretation is NOT “always trust the Supreme Court.” It is: “always trust the EXPERTS.” So who are the experts? Good question. When it comes to the purpose of the exclusionary rule, the Supreme Court knows best because they created the exclusionary rule. More than anybody else, Hitler knew the purpose of the Holocaust. Does Hitler, then, know best about “all things Holocaust”? No. In the same way we trust Hitler to know the purpose and purpose alone of the Holocaust, we trust the Supreme Court to know the purpose and purpose alone of the exclusionary rule.

Harms and Impacts

The problem inherently associated with the release of guilty criminals is a lack of justice. If you vote for the release of 150,000 guilty criminals per year, you will be removing justice from our criminal justice system, for justice is found in giving people what they deserve.

Violent criminals pose an additional threat, that of committing another violent crime. When 60% of violent criminals are rearrested within 3 years (Bureau of Justice Statistics), it is naïve to say that the release of violent criminals are not inherently harmful.

It's easy to call something a scare tactic, but harder to prove something to be a scare tactic. Until the negative provides statistics showing the social costs of the exclusionary rule to be negligent, you should vote on the facts.

Solvency

A. “SCOTUS isn't legislative”First, we don't need fiat. This is simple. Imagine a debate where the affirmative convinced the judge that their case SHOULD happen, and the negative convinced the judge that the case WOULD NOT happen. Who would win? Clearly the affirmative, because they fulfilled the resolution's burden of proof.

Second, SCOTUS is not solely a checking agent. His response to this was that SCOTUS only reviews cases. He's right. But reviewing a case and establishing a new precedent is an ACTION, not a check. In my mandates, SCOTUS removes the exclusionary rule BEFORE Congress does anything. SCOTUS cannot be checking something, because there's nothing to check.

B. “No test case”

1. Look at the resolution. Does it specify the present? No. Neither should you.

2. According to him, “fiat means you get to pass your plan.” That's OK, because I'm not trying to safeguard my plan against a future challenge. Once SCOTUS removes the exclusionary rule, I don't need any more “fiat.”

3. Fiating the future doesn't ensure solvency. It ensures your plan's existence, which is good. Remember that we want to debate the MERITS of the plan, rather than its chance of survival. Solvency is not “will your plan stick around?” but “does your plan solve the harms in the status quo?”

4. As I said in the 2AC, he did not impact the “no details” argument. Enough information about the test case has been given to debate: it is simply the next federal case in which the exclusionary rule is used.

C. “Mandating solvency”I already addressed this: In my plan, the Supreme Court is an ACTOR. They do NOT check a legislative bill. They hear an appeal on a case and establish a new precedent.

D. “SCOTUS role ignored”Let's make this clear: I am NOT using fiat to guarantee that SCOTUS will do anything. I am a high-schooler sitting on my couch. Nothing I say in this round will influence SCOTUS. I am simply upholding my burden of proof by proving to you that SCOTUS SHOULD ACT to remove the exclusionary rule.

Advantages

His first point: “it's optional.”My evidence said that “[contempt of court] would be a more reliable deterrent than the existing exclusionary rule.” (Rychlak, 2010) More reliable, as in you can rely on it to adequately punish officers.

His second point: “it allows evidence to be admitted.”Yes, it does, but that's OK. I'll touch on this soon, but this doesn't refute the deterrent effect of contempt of court.

His third point: “my evidence said 'should.'”This is why hate English. It's plain enough that by “should,” Rychlak meant “inasmuch as we can never predict the future, it will,” but here's yet another card:

“[Contempt of court] would create a strong deterrent, and it could operate without interfering with the pursuit of truth as the exclusionary rule does.” (Rychlak, 2010, emphasis added)

Disadvantage

“On consequentialism”Consequentialism is bad, and I'm not trying to justify it. However, the use of illegally obtained evidence DOES NOT justify the means used to get that evidence. His analogy will make this a little more clear.

In cross-examination, he said that the analogy didn't apply, but it actually applies perfectly. In the analogy, the rapist is the police officer. The mother is the person whose rights have been violated by the illegal search, and the baby is the evidence found by the search – the GOOD outcome that results from a BAD action. With that in mind, here's how three ideologies break down:

Consequentialism: Life is good. Rape leads to life. Ergo, we authorize rape because it leads to life.

Negative: Rape is bad. Ergo, EVEN THOUGH BABIES ARE GOOD, we should throw out the baby because the means through which it was produced are bad.

Affirmative: Rape is bad, but babies are good. Ergo, we should punish rapists but KEEP THE BABY.

The affirmative ideology clearly makes the most sense. Illegal searches are bad, but evidence is good. Ergo, we should punish the offending officers but KEEP THE EVIDENCE.

“On the Constitution”Once the illegal search is done, it's done. Says SCOTUS in United States v. Leon,

“The wrong condemned by the Amendment is 'fully accomplished' by the unlawful search or seizure itself, and the exclusionary rule is neither intended nor able to 'cure the invasion of the defendant's rights which he has already suffered.'”

The negative speaker admitted this in the cross-examination of the 2NC when he said that the use of illegally gained evidence is NOT a violation of rights. Since the Constitution only protects us from the illegal searches themselves, the best way to ensure this right is to deter the searches in the first place.

Wrapping up, the federal government SHOULD reform its criminal justice system by removing the exclusionary rule. It fails to deter and obstructs justice. Don't abort the baby, vote affirmative.

A. I never conceded that it's impossible to deter illegal search. Clearly, it's not impossible, because my solvency evidence (which he dropped) states that contempt of court does deter.

B. Expertise is NOT universal. He dropped my analysis on why it is good to listen to SCOTUS re: the purpose of the exclusionary rule (because they made it), but not to listen to them all the time, no matter what.

SCOTUS fiat

A. Should means “what ought to be.” Would means “what will be.” The exclusionary rule ought to – should – be removed. If I say “the Royals should win the World Series,” the average person does not respond by saying “No they shouldn't, because that would never happen.” When you consider whether something should happen, you don't consider the likelihood that it will happen. Thus, I don't need fiat. As long as my plan should (ought to) be passed, you should vote affirmative.

B. CHECKING is a specific activity established in Marbury v. Madison that denotes a judicial CHECK of a legislative LAW. In my mandates, SCOTUS does NOT CHECK – they establish a new precedent. Reviewing =/= check.

C. His interpretation of “fiating the future = fiating solvency” is detrimental to debate, because it opens up the affirmative to arguments like “Congress doesn't like your plan, so they'll repeal it as soon as you pass it.” He, apparently, doesn't want anybody's plan to stick around so he can get a cheap win by arguing that plan X won't live very long. That doesn't fly. Like I said in the 1AR, we want to debate the MERITS of a plan, not its chance of survival.

D. His impacts were that he can't possibly debate me because he doesn't know the details of the test case. And this matters... why? EVEN IF I could tell him that the test case was “United States v. Smith,” it wouldn't impact the debate.

E. If he has nothing to say on the D point, that should flow affirmative. It's clear his analysis doesn't apply, because I'm NOT TELLING THE SUPREME COURT WHAT TO DO. I'm telling you what they SHOULD do.

Disadvantage

A. No analogy is perfect. That doesn't mean that he can point out a difference and say it kills the analogy. He has to say why. Which he didn't, because the fact that the baby doesn't incriminate the mother of a crime doesn't really matter.

B. But for the sake of argument, let's assume that the baby does incriminate the mother of a crime. Should we then abort the baby? No. In fact, we should be MORE motivated to keep the baby, because it helps serve justice by enabling the judge (of the mother's trial) to make the right decision.

C. “The exclusionary rule does not exist to punish violators, it exists to protect victims.” False. The exclusionary rule exists to protect rights: 4th amendment rights. And what are 4th amendment rights? “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” IT IS THE RIGHT TO BE FREE FROM THE SEARCHES, NOT THE RESULTS OF THE SEARCHES. This is common sense, and it's not just me saying so. Say Patrick Tinsley (Attorney) and Stephan Kinsella (Attorney, Director of the Center for the Study of Innovative Freedom),

“Not only isthe exclusionary rulecontrary to libertarian principles, itis contrary to constitutional principlesas well. Lynch is simply mistaken in finding the exclusionary rule sanctioned by the Fourth Amendment.Nothing in the text of the Fourth Amendment gives even the slightest support for the practice of ignoring evidence of criminal guilt. As even the Supreme Court admits (see, e.g., United States v. Leon), the exclusionary rule is not a creature of the Constitutionbut of the judiciary itself. If the exclusionary rule really were embedded in the Constitution, it would be difficult to understand why it took over a hundred years to discover this, and why it applies only criminal trials and not to civil trials as well.”

E. The negative is blindly repeating their mantra on consequentialism, when our case clearly isn't. Utilizing the good result of a bad action in no way justifies the bad action. I don't know how to make this clearer. It's not consequentialism, it's making the best out of a bad situation.

Alright. Now that I've finished looking at what the negative addressed, let's look at what they didn't.

Harm 1 and Advantage 1

The negative conceded, even agreed, that the exclusionary rule does nothing to protect citizens from illegal searches. Do you see the impact of this? With no punishment for illegal searches, there is no deterrence of the searches. In other words, police officers are free to make WHATEVER SEARCHES THEY WANT TO. As reported in the Colorado Springs Gazette in 2010,

“The exclusionary rule does nothing to prevent miscarriages of justice or dissuade law enforcement from engaging in illegal searches and seizures. As a former police officer, I worked with officers who showed positive disdain for 4th and 5th Amendment rights. They knew that prosecution was not their problem, and their purpose and intent was to make the arrest no matter what.”

THIS IS WHAT'S HAPPENING IN THE STATUS QUO. There is NO protection from illegal searches – no protection for the real violation of 4th amendment rights.

Let's jump to the corresponding advantage, which they also dropped. In other words, they conceded that contempt of court does a better job of deterring than the exclusionary rule.

Harm 2 plus impacts...

which he also dropped. He conceded that the exclusionary rule hampers justice – and what is the justice system without justice? He also didn't respond to the inherent danger in letting 30,000 violent criminals loose every year.

As a final note, I would like to step back and look at the affirmative case through the lens of the stock issues.

Topicality and Inherency were not contested, and should flow affirmative.

Significance was dropped, and the impacts of lost justice, a hurt society, and failed deterrence all flow affirmative.

Solvency was, for all the talk about fiat, not really contested. After all, solvency is whether or not the case SOLVES the harms – not whether or not the case will remain in existence long enough to find out. I've demonstrated that my plan solves the problems, so solvency flows affirmative.

Finally, when it comes to the “fifth stock issue” of disadvantages, the sole negative DA doesn't apply to the affirmative plan (and thus has no impact in the round). Removing the exclusionary rule is not consequentialism, and it is the exclusionary rule – not the affirmative plan – that is unconstitutional.

To close out the round, I would like to read a quote from Ronald David W. Neubauer and Henry F. Fradella:

“In a 1981 speech, President Reagan’s strong words expressedthe views of the crime control model inopposition to the exclusionary rule: The exclusionary rule rests on the absurd proposition that a law enforcement error, no matter how technical, can be used to justify throwing an entire case out of court, no matter how guilty the defendant or how heinous the crime. The plain consequence of treating the wrongs equally is a grievous miscarriage of justice: The criminal goes free; the officer receives no effective reprimand; and the only ones who really suffer are the people of the community.”

Topicality: n/a (THANK YOU SO MUCH.)Inherency: n/aSolvency: Maybe I'm an idiot, but I didn't buy the supreme court argument. I mean, having SCOTUS remove the exclusionary rule seems to be something that would happen in the present. Mandating that they keep it that way seems necessary for every affirmative case, regardless of whether or not they use SCOTUS. Solvency goes AFF.Significance: n/a

STOCK ISSUES MET BY AFF.

The background points probably went Neg, but I didn't really see it as a major stock issue or harms/advantages/disadvantages. Thus it became a non-issue.

Harms+Advantages vs. Disadvantages

The harms and advantages were strong, but I really bought the Negative DA. I thought the Negative Disadvantage outweighed the harms and advantages, so I am voting NEG.

Solvency: AFF. Didn't buy the NEG argument based off of how fiat works in debate. SCOTUS is simply going to fulfill its purpose with AFF plan.

Disadvantage went NEG. I really bought it. AFF's responses were meh. NEG's responses were great. This DA outweighs the advantages/solvency and most of the other stock issues.

Harms/Advantages went NEG. The argumentation about the fourth amendment, the purpose of the exclusionary rule, etc. were hotly contested but in the end went NEG for me. They were pretty solid for AFF until the 2NC.

This card was very intriguing to me. "...the state's independent exclusionary rule..." to me, this card doesn't apply to the round because it's talking about UTAH'S e.r. A cross-ex question that I would've liked to have seen is "do the individual states have their own e.r.'s?" that would've opened up a whole new aspect to the debate that I felt was unfortunately missed. Maybe AFF or NEG can provide some clarification on this via PM.

Since this is a vdebate and not a real debate, the evidence and speeches were all there for me to review, which was extremely beneficial to me. If I watched this round and I judged, I would've asked to see the 1AC and the DA evidence, but since it's all right here for me I don't need to do so.

I liked the use of analogies. It wasn't over-the-top but it was just enough to make the round enjoyable.

Great round everyone. I really liked how both debaters dug deeper and found the hidden intricacies of the arguments. You both did a good job of appealing to my judging philosophy. Close decision.

Since the round is already finalized, I'm not going to go super in-depth.

Harms: The Aff was kind of shaky on these right out of the gate. I didn't see how they solved the problem, especially if their claim is true that Contempt of Court charges will deter illegal searches. If the evidence is never found/presented, how does that result in more Convictions than if the evidence is thrown out. Secondly, our justice system has innocence as a presumption. I didn't like how the affirmative's evidence assumed that every one of the Criminals was guilty.

The Neg really capitalized on the weaknesses, and it could definitely be a winning argument.

Disadvantage: I'd have liked to get another look at the initial structure of the Disadvantage, but it is gone now. So I'll just go off what I remember. It almost convinced me, but it was over-impacted. "Destroying America" is a possibility so remote, it negates the magnitude of the Impact. The Aff responses were weak, but the DA was weaker. Non-issue.

Solvency: The argument disintegrated into a messy discussion of fiat, but there are some things that stood out.

1. Fiating the future: It can't be done. You can nit-pick and say, "tomorrow is the future" but that is missing the point. Your plan must depend on Solvency, Solvency can't depend on your plan.2. Should vs. Could: The Negative brought up great arguments about how the Supreme Court can't do what the affirmative team wants them to do. The affirmative's response was pretty much: "We are debating what we should do, not whether it will happen." But the point is that we should not do things that are impossible.

1. Please, please, please, please, please do NOT run Topicality. I hate the argument, it's overused and abused. Unless there is true abuse coming from the affirmative case, T will not win you any brownie points with me.

Personal pet-peeve: Judges who completely block a legitimate argument because of their opinion on the issue. It's not very fair to the negative, especially seeing as Topicality is an established form of argument and by removing possible arguments you're striking at the negative team's foothold.

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